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On a daily basis, the Department of Home Affairs and the Australian Border Force conduct employer raids, during which they discover instances of illegal workers on site. This trend has been increasingly prevalent in recent times, and serves as a reminder of the importance of adhering to all relevant employment and immigration regulations and laws. It is imperative for businesses to thoroughly vet their workforce and ensure that all foreign employees have Australian work rights. Failure to do so may lead to significant legal, financial and reputational repercussions.
An illegal worker is a non-citizen working without a valid visa or in breach of their visa conditions.
The most important question for all Australian employers is: “Are my overseas employees legally working for me?”
All non-citizens who travel to and remain in Australia, must have a valid Australian visa to do so, and if you want a visa holder to work for you, they MUST have work rights.
If you employ a worker who does not have work rights, or you employ them contrary to their visa work conditions, you and your company become exposed to potentially huge civil and criminal fines. Your illegal workers may be subject to visa cancellation, deportation and/or detention. If your workers don’t hold a visa, they will likely be detained immediately and deported.
Ensuring that all potential and existing employees are legal workers is essential.
The Australian government has estimated that there are over 60,000 people in Australia without visas, and up to 100,000 people working illegally without a valid visa or working when they don’t have appropriate work rights!
Not all visa holders who come to Australia have permission to work, and for various reasons, some may not be aware of their visa expiry date. In the past, a visa label with an expiry date was placed in a visa holder’s passport. However, nowadays, a visa holder must rely on the visa grant letter to determine the expiry date or perform a visa verification (VEVO) check online.
Furthermore, some individuals may remain oblivious to the fact that their visas have been cancelled.
Case Study:
We were approached by a client who had no idea his visa had been cancelled months before. He was told about the visa cancellation when he attended the DHA office to apply for a new employer nomination. Upon investigation, the Dept sent the “Notice of Intention to Cancel” and the subsequent Visa Cancellation Notice to the wrong address.
His unlawful status went unnoticed because his employer had not done a VEVO check on him. Fortunately, we appealed the decision and the Tribunal revoked his visa cancellation. We also convinced the Tribunal that our appeal was lodged in time (normally, the timeline is seven business days for lodgement) because the notice of cancellation was sent to the wrong address by the Department of Home Affairs.
Not all visas provide “permission to work.”
Many temporary visas do not provide permission to work. Some other types of visas, such as bridging visas, may or may not allow the visa holder to work, depending upon the applicant’s visa type before their current bridging visa was granted. Generally speaking, a bridging visa has the same work conditions as the visa held previously by the bridging Visa holder.
Therefore, each employee’s visa status must be checked to determine whether or not they are entitled to work, whether they are entitled to work full-time or part-time, and what the visa expiry date is.
Employers are responsible for ensuring they do not employ illegal workers.
“Work” includes both paid and unpaid work.
The Department of Home Affairs considers “work” to be any activity that usually attracts remuneration.
Employers face significant criminal and civil penalties for allowing illegal workers to work, whether or not the employer is aware that a worker is working illegally – i.e., without a valid visa, with a valid visa which has no permission to work, or contrary to the valid visa’s work conditions.
“Allow to work” defined.
The relevant immigration legislation defines “allow to work” very broadly:
The first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for the first person or another participant in the arrangement or any such arrangement.
What!?
The effect of this dense definition is that almost any “arrangement for work” is deemed “employment”.
Allowing a person to work unlawfully also renders anyone who participates in an “arrangement” that results in a person working unlawfully liable. This could include parties other than a direct employer (e.g., labour hire operators, recruitment consultants).
Accessorial liability – don’t expose yourself to it.
The “accessorial liability” provisions in the Migration and Fair Work legislation state that not only employers but also executive officers, directors, managers, HR officers, and company accountants can be held responsible if workers are found to be working unlawfully in violation of the Migration Regulations and Migration Act.
For a person to be considered involved in an infringement, they must have intentionally participated in the infringement and have actual knowledge of the violation. It is also possible to infer actual knowledge if the person was “willfully blind” to the violation at the time of the infringement.
Penalties for employers’ breaches of employee visa conditions
Unless employers can prove that they have taken reasonable steps to verify that their employee had permission to work in the role offered, employers can potentially face fines under the civil penalty rules.
A “No fault” approach is taken by the Department of Home Affairs
No, this is not a good thing!
Civil Breaches
Under the civil penalty rules, the Department of Home Affairs (DHA) need not prove that the employer (or a person deemed to be liable by way of being an “accessory” – see above) knew the worker’s visa status, or was reckless to their employees’ visa status (i.e. behaviour which can attract criminal penalties).
Employers are assumed guilty of a civil breach unless they can prove they followed the appropriate visa verification procedures (VEVO). This means penalties apply even if the employer did not know they were employing illegal workers.
The DHA can issue infringement notices independently to employers without applying to a court to impose a penalty.
Civil breaches include:
• Allowing a person who does not have a visa to work.
• Allowing a person who has a “no work” condition on their visa to work.
• Allowing a worker to work more hours than they are allowed to in breach of their visa work restrictions. For example, student visa holders are usually only allowed to work 48 hours per fortnight during course times.
• Referring a person for work who does not have a visa or who has a “no work” condition” on their visa, which means that, e.g., recruitment consultants may contravene the legislation if they refer a person who does not have work rights.
• An employer’s participation in any arrangement where an illegal worker is allowed to work. This means that an employer may be caught out if they allow even a subcontractor (i.e., a person who is not an employee) to work unlawfully.#
A wide range of monetary penalties can be applied to employers who engage illegal workers or engage workers who breach their work conditions.
The civil penalties (per illegal worker) are:
• $28,170 + for an individual (e.g. a sole trader); or
• $140,850 + for a body corporate (e.g. a company).
Criminal sanctions
Where employers have recklessly or knowingly employed illegal workers, the criminal penalties are as follows:
Primary offences (per illegal worker):
$37,560 and two years imprisonment for an individual (e.g. a sole trader) or $187,800+ for a corporate body (e.g. a company).
Aggravated offences (per illegal worker):
$93,900+ and up to five years imprisonment for an individual or
$469,000+ for a body corporate (e.g. a company).
Civil and criminal penalties can be applied simultaneously in any case. In some cases, an employer may face civil/criminal penalties under the Fair Work Act as well for breaches of employment law.
It’s not just about the criminal or civil sanctions either!
If any of the civil or criminal sanctions discussed above are applied to an employer, it will result in “adverse information” being held against the employer.
If the employer is an approved business sponsor, “adverse information” may result in the sponsor being barred from sponsoring further workers or having their sponsorship cancelled. If the sponsorship is cancelled, all visas associated with the sponsorship will also be cancelled.
Such an employer may also be precluded from nominating their existing workers for permanent residence by the Department of Home Affairs. Even applications for PR that have already been lodged can be refused by the DHA because the nominating employer has adverse information against them.#
What measures can employers take to protect themselves from sanctions?
An employer has the burden of proof to show they took “reasonable steps” to avoid hiring illegal workers, including regularly verifying the visa status of employees.
Acceptable visa verification procedures
The DHA regards appropriate visa verification procedures to include the following:
- Using third-party contractors to verify a worker’s visa conditions and visa status (VEVO);
- Establishing that an employee is an Australian or New Zealand citizen; and
- Using the Department of Home Affairs’ VEVO service themselves.
If you hire employees from labour-hire companies
Employers remain responsible for hiring legal workers even when sourcing employees from labour-hire contractors.
Employers may overcome this hurdle by including a clause in the contract to the extent that the labour supply will only include legal workers, shifting the liability back onto the labour-hire supplier.
Do not rely on visa grant letters or employees’ own VEVO Checks
Simply sighting an employee’s visa grant letter is insufficient, as the visa may have expired, be cancelled, or superseded by another visa with different work conditions.
We also do not recommend allowing employees to provide “evidence” of checking their visa status for obvious reasons.
See our other Employer Series articles here.
About the author
Maggie Taaffe is an immigration lawyer and strategic partner with over 12 years of experience in helping employers hire and sponsor international talent. As the driving force behind AHWC Immigration Law, Maggie’s expertise goes beyond legal counsel. She is a go-to source for comprehensive advice, compliance solutions, and training materials designed to empower employers navigating the complex terrain of Australian employer sponsorship schemes, including Standard Business Sponsorship, Labour Agreements, PALM, and Training Visa Schemes.
By choosing Maggie and her team, you are selecting proven advocates who understand the nuances of immigration law inside and out, particularly when it comes to employing foreign visa holders.
To get started on a journey towards a seamless, compliant, and successful international hiring and employment of Australian visa holders, contact Maggie today at mtaaffe@ahwc.com.au.
